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pro laefione fidei, fo late as the fifteenth century ", till finally prohibited by the unanimous concurrence of all the judges. However, it appears from the parliament rolls", that in the reigns of Henry IV and V the commons were repeatedly urgent to have the writ of fubpoena entirely fuppreffed, as being a novelty devised by the fubtilty of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in fubverfion of the common law. But though Henry IV, being then hardly warm in his throne, gave a palliating answer to their petitions, and actually paffed the ftatute 4 Hen. IV. c. 23. whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his fon put a negative at once upon their whole application: and in Edward IV's time, the procefs by bill and fubpoena was become the daily practice of the court *.

BUT this did not extend very far: for in the antient treatise, entitled diverfite des courtesy, supposed to be written very early in the fixteenth century; we have a catalogue of the matters of confcience then cognizable by subpoena in chancery, which fall within a very narrow compafs. No regular [54] judicial fyftem at that time prevailed in the court; but the fuitor, when he thought himself aggrieved, found a defultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclefiaftic, or fometimes (though rarely) a statesman: no lawyer having fate in the court of chancery from the times of the chief justices Thorpe and Knyvet, fucceffively chancellors to king Edward III in 1372 and 1373, to the promotion of fir Thomas

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More by king Henry VIII in 1530. After which the great feal was indifcriminately committed to the custody of lawyers, or courtiers, or churchmen, according as the convenience of the times and the difpofition of the prince required, till ferjeant Puckering was made lord keeper in 1592: from which time to the prefent the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the feal was intrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to lord Ellefinere, when chancellor .

In the time of lord Ellesmere (A. D, 1616.) arofe that notable difpute between the courts of law and equity, fet on foot by fir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law. This contest was fo warmly carried on, that indictments were preferred against the fuitors, the folicitors, the counfel, and even a mafter in chancery, for having incurred a praemunire, by queftioning in a court of equity a judgment in the court of king's bench, obtained by grofs fraud and impofition". This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion; who reported fo ftrongly in favour of the courts of equity, that his majefty gave judgment on their behalf: but, not contented with the irrefragable reasons and precedents produced by his counfel, (for the chief justice was clearly in the wrong) he [55] chofe rather to decide the question by referring it to the plenitude of his royal prerogative. Sir Edward Coke fubmitted to the decifion, and thereby made atonement for his

a Wriothesly, St. John, and Hatton.
b Goodrick, Gardiner, and Heath.
Biogr. Brit. 4278.

d Bacon's Works. IV. 611,612.632.
e Whitelocke of parl. ii. 390. 1
Chan. Rep. append. 11.

For that it appertaineth to our princely office only to judge over all "judges, and to difcern and deter

"mine fuch differences, as at any time "may and fhall arise between our seve"ral courts touching their jurifdictions, "and the fame to fettle and determine, "as we in our princely wisdom shall find "to stand moft with our honour, &c." (1 Chanc. Rep. append. 26.)

g See the entry in the council book, 26 July, 1616. (Biogr. Brit. 1390.)

error:

error: but this struggle, together with the business of commendams (in which he acted a very noble part) and his controlling the commissioners of fewers', were the open and avowed causes, first of his suspension, and soon after of his removal, from his office.

LORD Bacon, who fucceeded lord Ellesmere, reduced the practice of the court into a more regular fyftem; but did not fit long enough to effect any confiderable revolution in the fcience itself: and few of his decrees which have reached us are of any great confequence to pofterity. His fucceffors, in the reign of Charles I, did little to improve upon his plan: and even after the restoration the feal was committed to the earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practifed at all. Sir Heneage Finch, who fucceeded in 1673, and became afterwards earl of Nottingham, was a perfon of the greatest abilities and moft uncorrupted integrity; a [ 56 ] thorough master and zealous defender of the laws and conftitution of his country; and endued with a pervading genius, that enabled him to difcover and to purfue the true fpirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redrefs which had poffeffed the courts of equity. The reafon and neceflities of mankind, arifing from the great change in property by the

In a caufe of the bishop of Winchefter, touching a commendam, king James conceiving that the matter affected his prerogative, fent letters to the judges not to proceed in it, till himself had been first confulted. The twelve judges joined in a memorial to his majesty, declaring that their compliance would be contrary to their oaths and the law: but upon being brought before the king and council, they all retracted and promised obedience in every fuch cafe for the future; except fir Edward Coke, who faid "that

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"when the cafe happened, he would de
"his duty." (Biogr. Brit. 1388.)
i See that article in chap. 6.

k See lord Ellesmere's speech to fir
Henry Montague, the new chief juftice,
15 Nov. 1616. (Moor's reports. 828.)
Though fir Edward might probably have
retained his feat, if, during his fufpenfion
he would have complimented lord Villi-
ers (the new favourite) with the difpo-
fal of the most lucrative office in his
court. (Biogr. Brit. 1391.)

extenfion

Book III. extension of trade and the abolition of military tenures, cooperated in establishing his plan, and enabled him in the course of nine years to build a system of jurisprudence and jurifdiction upon wide and rational foundations; which have alfo been extended, and improved by many great men, who have fince prefided in chancery. And from that time to this, the power and bufinefs of the court have increased to an amazing degree.

FROM this court of equity in chancery, as from the other fuperior courts, an appeal lies to the house of peers. But there are thefe differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter, the latter upon nothing but only a definitive judgment: 2. That on writs of error the houfe of lords pronounces the judgment, on appeals it gives direction to the court below to rectify it's own decree.

IX. THE next court that I fhall mention is one that hath no original jurifdiction, but is only a court of appeal, to correct the errors of other jurifdictions. This is the court of exchequer chamber; which was firft erected by statute 31 Edw. III. c. 12. to determine caufes upon writs of error from the common law fide of the court of exchequer. And to that end it confifts of the lord chancellor and lord treasurer, taking unto him the justices of the king's bench and common pleas. In imitation of which, a fecond court of exchequer chamber was erected by ftatute 27 Eliz. c. 8. confifting of the juftices 57 of the common pleas, and the barons of the exchequer; before whom writs of error may be brought to reverfe judgments in certain suits' originally begun in the court of king's bench. Into the court alfo of exchequer chamber, (which then confifts of all the judges of the three fuperior courts, and now and then the lord chancellor alfo) are sometimes adjourned from the other courts fuch caufes, as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court below ". m4 Inft. 119. 2 Bulstr. 146.

1 See ch. 25. pag. 411.

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FROM all the branches of this court of exchequer chamber, a writ of error lies to

X. THE house of peers; which is the fupreme court of judicature in the kingdom, having at present no original jurifdiction over causes, but only upon appeals and writs of error, to rectify any injuftice or mistake of the law, committed by the courts below. To this authority this august tribunal fucceeded of courfe upon the diffolution of the aula regia. For, as the barons of parliament were constituent members of that court; and the reft of it's jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to prefide; it followed, that the right of receiving appeals, and fuperintending all other jurifdictions, ftill remained in the refidue of that noble affembly, from which every other great court was derived. They are therefore in all caufes the laft resort, from whofe judgment no farther appeal is permitted; but every fubordinate tribunal muft conform to their determinations: the law repofing an entire confidence in the honour and confcience of the noble perfons who compofe this important affembly, that (if poffible) they will make themselves mafters of those questions upon which they undertake to de`cide, and in all dubious cafes refer themselves to the opinions of the judges, who are fummoned by writ to advise them; fince upon their decifion all property must finally depend.

HITHERTO may also be referred the tribunal established by [ 58 ] ftatute 14 Edw. III. c. 5. confifting (though now out of use) of one prelate, two earls, and two barons, who are to be chofen. at every new parliament, to hear complaints of grievances and delays of justice in the king's courts, and (with the advice of the chancellor, treasurer, and juftices of both benches) to give directions for remedying these inconveniences in the courts below. This committee feems to have been eftablished, left there fhould be a defect of juftice for want of a fupreme court of appeal, during any long intermiffion or recess of parliament; for the ftatute farther directs, that if the VOL. III. E 8 difficulty

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